Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

U.S. Backs Parents in Special Education Case

The Obama administration is siding with parents in a case before the U.S. Supreme Court about whether private school tuition can be reimbursed when a child has never received special education services in public school or even been enrolled in public school.

"When a child with a disability has been denied a free appropriate public education, [the Individuals with Disabilities Education Act] authorizes an awardof private-school tuition reimbursement regardless of whether the child previously received public special education," says the brief filed by U.S. Solicitor General Elena Kagan in Forest Grove School District v. T.A. (Case No. 08-305).

The case, to be argued April 28, is the Supreme Court's second attempt resolve the issue of whether private school reimbursement is available when a child with a disability who was never in public school or in special education has nonetheless been found to have been denied a free appropriate public education under the IDEA.

The court deadlocked 4-4 in a 2007 case, New York City Board of Education v. Tom F., that involved the same issue. Justice Anthony M. Kennedy recused himself from that case for undisclosed reasons, but will participate in the new case, which is from the 6,000-student Forest Grove district in Oregon.

In the Forest Grove case, the Obama administration has adopted a view similar to that of President George W. Bush's administration in the New York City case.

The new brief rejects the school district's arguments that a 1997 congressional amendment to the IDEA limited private school reimbursements to students who were previously enrolled in public schools and received special education services from them.

"Most fundamentally, [the school district's] reading contravenes IDEA’s central guarantee of providing a free appropriate education to 'all children with disabilities,” the U.S. brief says.

The brief also stresses that the U.S. Department of Education takes the same view that reimbursements are not limited to cases where the student has previously received public school services.

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